Bombay High Court
MANISHA VITHOBA CHAVAN THR FATHER VITHOBA T CHAVANversusTHE STATE OF MAHARASHTRA THROUGH DEPARTMENT OF HEALTH AND FAMILY WELFARE AND OTHERS
- Disposal
- DISPOSED OFF
Holding
The court held that termination of the 28‑week pregnancy is permissible, overriding the statutory limit, in view of the victim’s mental incapacity, best‑interest considerations, and constitutional rights.
Summary
The petition was filed by the father of a 34‑year‑old woman with moderate intellectual disability who was sexually assaulted and is pregnant at 28 weeks. The petitioner sought an emergency medical board and permission for termination of pregnancy beyond the 24‑week limit, along with preservation of fetal DNA for a police investigation. The High Court considered the medical board’s opinion, earlier High Court judgments, and the Supreme Court’s decision in S v Union of India (2026) emphasizing the pregnant woman’s reproductive autonomy and best‑interest principle. It held that the statutory limit of the MTP Act could be overridden where the woman’s health, mental condition, and inability to care for a child are at stake. Accordingly, the court ordered the termination to be carried out within three days, directed preservation of DNA samples, and provided for care of a live‑born child if any.
Issues considered
- Whether a medical termination of pregnancy beyond 24 weeks is permissible for a mentally incapacitated minor victim of sexual assault.
- Whether the best‑interest and constitutional right to reproductive autonomy under Article 21 can override the statutory limits of the MTP Act.
- Whether the medical board’s adverse opinion can be set aside in such circumstances.
- Whether DNA/fetal tissue must be preserved for forensic purposes.
Legislation cited
Subjects
- medical termination of pregnancy
- intellectual disability
- sexual assault
- reproductive autonomy
- Article 21
- best interests of mother
- MTP Act
- forensic DNA
- minor
Judgment
2026:BHC-AUG:23670-DB
1 WP 5800-26
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5800 OF 2026
Manisha d/o Vithoba Chavan,
Age : 34 years, Occu.: Student,
R/o.: Kumbar Zari, Tq. Jafrabad,
District : Jalna
(Being mentally incapacitated,
represented through her natural
guardian)
Through father :
Vithoba s/o Tejrao Chavan,
Age : 57 years, Occu.: Service,
R/o.: Kumbar Zari, Tq. Jafrabad,
District : Jalna ….. PETITIONER
VERSUS
1. The State of Maharashtra
Through : Department of Health
and Family Welfare, Mantralaya,
Mumbai.
2. The Civil Surgeon / District Medical Board,
District General Hospital, Jalna
3. The Medical Superintendent,
District Women Hospital, Jalna
4. The Superintendent of Police, Jalna,
District : Jalna …. RESPONDENTS
….
Ms. Dr. Anagha Pedgaonkar i/b Mr. G. K. Kshirsagar, Advocate for
the petitioner
Ms. J. P. Reddy, AGP for Respondents-State
….
CORAM : SANDIPKUMAR C. MORE AND
VAISHALI PATIL-JADHAV, JJ.
DATED : 17/06/2026
2 WP 5800-26
P. C. :
1. By way of the present petition, the petitioner, who is mentally
incapacitated and is represented through her father, has sought a
direction to Respondent Nos. 2 and 3 to constitute an emergency
Medical Board for evaluating her case and for carrying out the
medical termination of her pregnancy. The petitioner has also
sought a direction that the operating surgeons shall preserve and
seal the DNA/fetal tissue samples obtained from the terminated
fetus and hand them over to the Investigating Officer of Tembhurni
Police Station in connection with C.R. No. 80 of 2026 for the
purposes of forensic examination and DNA matching.
2. The learned counsel for the petitioner submits that the victim
is a 34-year-old unmarried woman suffering from Moderate
Intellectual Disability and Autism Spectrum Disorder. It is
submitted that she became a victim of sexual assault by an
unknown person. Owing to her inability to communicate, the
identity of the said person could not be disclosed and consequently,
the name of the accused remains unknown in FIR bearing C.R.
No.80 of 2026 registered with Tembhurni Police Station. It is
further submitted that as a result of the said sexual assault, the
victim conceived and is presently carrying a pregnancy of
approximately 28 weeks and 3 days. The learned counsel submits
that the victim herself is entirely dependent upon her parents for
her day-to-day needs and care, and therefore, it would not be
possible for her to carry the pregnancy to term and assume the
responsibilities associated with childbirth and child-caring.
3 WP 5800-26
Accordingly, the present petition has been filed seeking appropriate
directions for the medical termination of her pregnancy.
3. Pursuant to the order dated 11/06/2026, this Court directed
the Medical Board at General Hospital, Jalna, to examine the
victim and submit its report regarding the feasibility of termination
of pregnancy beyond 24 weeks of gestation. Accordingly, the report
of the said Medical Board has been received. The said report reads
as thus:
“ X , age 34 years, / old Female / unmarried/h/o?
Sxual assault/ G1 P1(Primi) accompanied by her
mother Lata Vithoba Chavan.
Patient was referred for psychiatry evaluation on
04/06/2026 and seen on same day by psychiatrist
Dr. Lumbini Debaje. Assit. Prof. GMC & DH Jalna
and also Dr. Nitin Pawar Psychiatrist DH Jalna on
Psychological evaluation she has intellectual
quotient is 50 having moderate Intellectual
Disability her intelligence not appropriate. As per
history by her step mother she was admitted with
history of sexual assault and having pregnancy of
28 weeks, (as report on that day).
On asking her she is keeping mute and not able to
answer question asked about pregnancy and
sexual assault.
On mental status examination she has difficulty in
understanding and not able to answers questions
about her general knowledge and calculation as
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per her age. She is keeping mute and her affect is
silly. She has no insight and judgment.
Impression : Moderate intellectual disability with
primi 28 wks., and Decision about MTP can be
taken on risk and benefits to child, mother & child
bearing with care.
4. Though the learned AGP, upon perusing the said report,
contended that the medical termination of a pregnancy of 28 weeks
may pose a risk to the life of the victim, but the learned counsel for
the petitioner, in support of the relief sought, has placed reliance
on the following judgments:
A) Judgment dated 11/05/2021 passed by this
Court, Principal Seat, in Writ Petition (L)
No.11131 of 2021 [‘X’ (since minor through her
father Mr. Jitendra Kumar Singh vs. The State
of Maharashtra]; and
B) Order dated 14/07/2020 passed by this court in
Writ Petition No.4888 of 2020 (XYZ, through her
natural guardian i.e. father Raju Dipa Koli vs.
The State of Maharashtra)
Likewise, the learned AGP, while assisting the Court, has also
relied upon the following judgments:
A) Judgment dated 17/06/2025 passed by this
Court, Nagpur Bench, in Writ Petition No. 3027
of 2025, ( XYZ Minor thourgh her natural
guardian father vs. Union of India & Others);
and
B) Order dated 24/04/2026 passed by the Hon'ble
Apex Court in @ SLP (C) No. 14454 of 2026, S vs.
Union of India & Others.
5 WP 5800-26
5. In the recent judgment in the case of S vs. Union of India
and others (supra), the Hon’ble Apex Court has observed as
follows:
“11. The Court must, while exercising jurisdiction
under Article 226 or Article 32 of the
Constitution of India, therefore, prioritize the
best interests of the minor mother-to-be in the
present case, over the procedural and
statutory limitations under the MTP Act. If the
interest and welfare of the mother-to-be are to
be given due consideration, her reproductive
autonomy must be accorded the highest
importance. This is particularly having regard
to the facts and circumstances of the present
case.
11.1 The right to make decisions concerning one’s
body, particularly in matters of reproduction,
is an integral facet of personal liberty and
privacy under Article 21 of the Constitution of
India. This right cannot be rendered
ineffective by imposing unreasonable
restrictions, especially in cases involving
minors and unwanted pregnancies, such as in
the instant case.
11.2 No court ought to compel any woman and
more so a minor child, to carry a pregnancy to
full term against her express will. Such
compulsion would not only disregard her
6 WP 5800-26
decisional autonomy but could also inflict
grave mental, emotional and physical trauma
in case she is compelled to give birth. In these
circumstances, denying the relief sought
would compel the minor to endure irreversible
consequences. Such an approach would be
contrary to the constitutional ethos and the
settled principles recognizing reproductive
choice as a fundamental right. What is of
relevance is the choice of the pregnant woman
rather than the interest of an unborn child. It
is easy to say that if the pregnant woman is
not interested in raising the child, she may
give away the child in adoption and therefore,
must be compelled into giving birth to the
child. However, that cannot be the correct
approach, particularly, in cases where the
child to be born is unwanted. In such a
situation, directing the pregnant woman to
give birth to the child against her wishes and
to forcefully continue her pregnancy would
negate the welfare of the pregnant woman and
make it subordinate to the child yet to be
born.
11.3 We find that in cases of unwanted pregnancy,
often the decision to terminate is made beyond
the statutory period prescribed under the MTP
Act owing to several reasons. It is under such
circumstances that Constitutional Courts
7 WP 5800-26
must weigh the circumstances in which a case
in relation to the welfare of the pregnant
woman has to be considered rather than the
child to be born. In fact, under certain
grounds, the MTP Act itself permits
termination of pregnancy which is therefore,
recognized in law. The Constitutional Court is
approached only when the statutory remedy is
not available to a party. Can the
Constitutional Court then say that since the
statutory remedy is not available, no
constitutional remedy would be available.
That, in our view, cannot be the approach. A
lack of remedy under a statute does not bar a
constitutional remedy. The statute codifies a
part of the constitutional remedy. If a case is
not covered within the four corners of a
statute then, can the constitutional relief be
also denied? In our view, in such
circumstances, the Constitutional Court ought
to weigh all facts and circumstances from the
lens of the party who intends to terminate the
pregnancy and is willing to undertake the
medical risk, rather than compelling her to
complete the pregnancy term and give birth to
an unwanted child. If the pregnant woman
carrying an unwanted pregnancy is compelled
to continue such a pregnancy, then the
8 WP 5800-26
constitutional rights of the pregnant woman
would be breached.
11.4. Further, if the Constitutional Court adopts the
view that even an unwanted pregnancy must
be continued, then instead of approaching the
court for permission, pregnant women would
visit illegal abortion centres and secretly
undergo termination of such pregnancies
which would only make such women more
vulnerable and expose them to more
dangerous procedures. It is under such
considerations that a Constitutional Court
must decide what is best in the interest of the
pregnant woman, particularly, when the
pregnancy is unwanted as in the present
case.”
Thus, in the aforesaid case, the Hon'ble Apex Court, while
rebutting the order of the High Court rejected the then petitioner's
request for medical termination of pregnancy and observed that in
cases involving an unwanted pregnancy, greater weightage must be
accorded to the welfare and well-being of the pregnant woman
rather than that of the child yet to be born.
6. In the present case, the victim is the daughter of the
petitioner and is a person suffering from intellectual disability. She
is unable even to disclose the identity of the person who sexually
assaulted her. Further, considering the fact that she herself is
dependent upon her parents for care and support, it can safely be
9 WP 5800-26
inferred that she would not be in a position to independently
undertake the responsibilities associated with childbirth and the
care of a newborn child. It is pertinent to note that, though the
Medical Board has opined that medical termination of pregnancy is
not advisable, but the said opinion appears to have been rendered
primarily on the ground that no fetal anomaly was detected.
However, despite such opinion the members of the Medical Board
have also opined that decision of MTP can be taken on risk and
benefits to child, mother and child bearing with care. Therefore,
having regard to the observations made by the Hon'ble Apex Court
in S. v. Union of India & Others (supra), and particularly
considering the mental condition of the victim daughter of the
petitioner, this Court is of the view that the prayer for medical
termination of pregnancy deserves to be granted.
7. The learned counsel for the petitioner has also placed reliance
upon the judgment of this Court in Writ Petition (L) No. 11131 of
2021, 'X' (since minor through her father Mr. Jitendra Kumar
Singh) v. State of Maharashtra (supra), with regard to the
measures to be adopted in the event the child is born alive. She
submitted that, in the said judgment, this Court has adequately
addressed and provided for all such contingencies and
eventualities. Therefore, having regard to the aforesaid judgment of
this Court as well as the observations made by the Hon'ble Apex
10 WP 5800-26
Court in S. vs. Union of India & Others (supra), we are inclined
to pass the following order:
ORDER
I. The writ petition is allowed.
II. Respondent Nos. 2 and 3 are hereby directed to
evaluate the petitioner's victim daughter and to
safely carry out the medical termination of her
pregnancy at the District Women Hospital /
District General Hospital, Jalna, in accordance
with the report dated 12/06/2026 submitted by
the Medical Board of the said hospital, as
expeditiously as possible and preferably within
three days from the date of this order.
III. The operating surgeons shall preserve and seal
the DNA/fetal tissue samples obtained from the
terminated fetus and hand them over to the
Investigating Officer of Tembhurni Police Station
in connection with C.R. No. 80 of 2026 for the
purpose of forensic examination and DNA
matching.
IV. In the event that the child is born alive, the
surgeons conducting the procedure shall ensure
that all necessary medical facilities are provided
to safeguard the life of the child. If the petitioner
and her daughter are unwilling or unable to
assume responsibility for the child, the State
11 WP 5800-26
and its agencies shall assume full responsibility
for the child's care and welfare.
V. The learned AGP is directed to forward a copy of
this order to the Investigating Officer conducting
the investigation in C.R. No. 80 of 2026
registered with Tembhurni Police Station.
VI. All concerned parties shall act upon an
authenticated copy of this order.
VII. There shall be no order as to costs.
( VAISHALI PATIL-JADHAV, J. ) ( SANDIPKUMAR C. MORE, J. )
VS Maind/-
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